Changes to Illinois Unemployment Act May Make it Easier For Employers to Win Unemployment Claims
On December 4, 2015, Governor Rauner signed into law sweeping changes to the Illinois Unemployment Insurance Act, effective on January 3, 2016, which are designed to make it easier for employees to be disqualified from receiving benefits on account of “employee misconduct.”
Generally, under the Illinois Unemployment Insurance Act (the “Act”), benefits will be paid to separated employees unless (1) the employee voluntarily resigned and there was work available; or (2) the employee committed “misconduct connected with the work.” Prior interpretations of what exactly constituted “misconduct” connected with the work required a finding of a “deliberate and willful violation of a reasonable rule or policy of the employing unit governing the individual’s performance of his/her work provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit.” Thus, an employer was required to show that it had a reasonable rule or policy in place; that the separated employee was aware of that reasonable rule or policy; that the employer provided information on the consequences of a violation of that rule or policy; that despite all of this, the employee repeatedly violated the rule or policy after being placed on notice; and the specific harm suffered by the employer as a result of the continued violation.
The most common attempts by employers to claim “misconduct” (especially during the holiday season), involves claims of unauthorized use of the company’s computer resources (internet) to conduct online shopping. Most employers may have policies that restrict the use of company provided computers only for company business. However, most employers are lax in enforcing this rule. Allowing the use of a company provided computer for personal e-mail communication is another area where employers routinely do not enforce their own rules. Finally, employees often use company provided computers to surf the web for better job opportunities. Each of these activities can “harm” the employer by paying an employee to conduct activities which are not in the best interests of the employer (technically stealing time that should be devoted to work for the employer), but most employers do not enforce such rules on a consistent basis. Thus, under the old interpretation of “misconduct”, employees often prevailed in their claims for unemployment benefits.
All of that will change effective January 3, 2016 with the amendments to the Act. While still maintain the broad concept of “misconduct” as outlined, the new amendments now add very targeted and specific work related circumstances that trigger misconduct. These new areas include:
- Falsification of information on an employment application;
- Failure to maintain licenses or certifications required by the employer or by law and which are necessary to perform the employee’s duties;
- Knowing, repeated violations of the attendance policies of the employer that are in compliance with state and federal law following a written warning for an attendance violation, unless the individual can demonstrate that he or she has made a reasonable effort to remedy the reason or reasons for violations or that the reason or reasons were out of the individual’s control. Attendance policies of the employer shall be reasonable and provided to the individual in writing, electronically, or via posting in the workplace.
- Damaging the property of the employer through actions that are grossly negligent;
- Refusal to obey lawful instruction by the employer, unless the refusal is due to a lack of training or ability or if the performance of the act would somehow result in an unsafe act;
- Use of alcohol, illegal drugs or non-prescribed legal medications on the employer’s premises during working hours;
- Engaging in grossly negligent conduct that endangers the employee or any co-worker.
Employers should act now to ensure that their policies and procedures are up to date. Similarly, employers should be sure to communicate any changes to their policies to the employee base and make certain employees acknowledge receipt and understanding of any new policies or procedures. Most importantly, even with the best intentions, unless management evenly and consistently applies the policies or procedures to all employees, they will be of little value before the Illinois Department of Employment Security when trying to deny a claim for benefits.
With over 30 years’ experience in advising employers on workplace issues, let the experienced business attorney and employment attorney at Boznos Law work with you and your team to ensure you are ready to meet the challenges posed by the changes to the Illinois Unemployment Insurance Act. Call Bill Boznos today at (630) 375-1958 or contact us through our website at http://www.boznoslawoffice.com